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### STATE OF MICHIGAN

COURT OF APPEALS

FIDELITY NATIONAL TITLE INSURANCE COMPANY,

Plaintiff, UNPUBLISHED October 30, 2014

v No. 316084 Grand Traverse Circuit Court CHS-HAMILTON, INC. f/k/a HAMILTON FARM BUREAU COOPERATIVE, INC., LC No. 2011-028825-CZ

Defendant-Appellant, and

JOHN WILTZER and JOHN J. WILTZER, INC.,

Defendants-Appellees.

Before: F ITZGERALD , P.J., and G LEICHER and R ONAYNE K RAUSE , JJ.

R ONAYNE K RAUSE , J. ( dissenting )

I respectfully dissent from the majority’s decision to reverse the trial court’s award of sanctions because I believe this Court is re quired to defer to the trial court under the circumstances of this case.

I agree with the majority’s recitation of the f acts and applicable law. However, I disagree with the majority’s application of the standard of review and conclusion that the trial court erred in imposing sanctions. Our review is not de novo. Rather, where a party challenges some underlying fact supporting the trial court’s decision, then the approp riate standard of review is clear error, and the reviewing c ourt must defer to the trial cour t’s view of the facts unless the reviewing court is left with the definite and firm conviction that a mistake has been made by the trial court. Herald Co Inc v Eastern Michigan Univ Bd of Regents , 475 Mich 463, 470-472; 719 NW2d 19 (2006). Consequently, this Court will not reverse a trial court’s finding of frivolity merely because we would have arrived at a differe nt conclusion, but rather only if we are certain that the trial court was wrong. I be lieve the majority erroneously fail s to afford the trial court the deference which it is due.

Hamilton’s entire defense was, in effect, that the four corners of the written agreements imposed no duty to discharge the particular mortga ge at issue, so theref ore Hamilton had no such-2- duty. The trial court reasonably observed that Hamilton’s past dealings showed that Hamilton appeared not to regard the four corners of the written agreements as th e entirety of its actual agreements, if indeed Hamilton regarded the writte n agreements as even re levant. The trial court further reasonably observed that national standa rds made Hamilton’s past dealings proper or even mandatory, in contrast to actions or inact ions that would seem dictated by the written agreements. Consequently, the trial court is sued sanctions upon finding that there was no reasonable basis to believe the facts asserted by Hamilton.

Again, this Court is obligated to defer to th e trial court’s factual findings and may reverse only if definitely and firmly convinced that the trial court made a mistak e. The evidence in the record supports the trial court’ s factual findings. The fact that Hamilton raised a superficially legally cognizable defense that might have been supportable is not a sufficient basis for overturning a trial court’s supported factual findings. We note th at the trial c ourt did not hold that Hamilton’s position lacked any support, but rather reasonable support. It appears to me that the majority disagrees with the trial court because it believes Hamilton’s defense has factual support. However, clear error may not be found me rely because a reviewing court finds that an alternative outcome would have been permissible. See Hill v City of Warren , 276 Mich App 299, 308-309; 740 NW2d 706 (2007).

Clearly, the trial court’s conclusion does not have no support in the record, and I am unpersuaded that Hamilton has carried its burden of showing that the defe rence this Court must afford trial courts should be overcome. I do no t believe the record show s that the trial court clearly erred, therefor e I would affirm.

/s/ Amy Ronayne Krause